Employment Law Coffee Break: Employment Rights Act, AI in the tribunals, and our September HR pensions spotlight

Employment Rights Act webinar series

Join us for our next webinar on harassment protections

The next webinar in our Employment Rights Act (ERA) series is on Monday 12 October at 10am: "Every step you take: The new harassment prevention duties", where we will be looking at what is coming into force and at what “prevention” really means in practice, from policies and training to culture and enforcement. We hope you will join us.
Register here >

If you missed our first webinar, where partners Vic Parry and Olivia Sinfield and associate directors Emma Ladey and Natalie Paddock looked at the most pressing questions for employers coming out of the forthcoming unfair dismissal reforms, you can catch up here. 

A focus on what the ERA means for private equity

Partners Lara Fatemi and Michael Carter will tackle what the ERA means for private equity firms in a 30-minute webinar, "Risk and reward: navigating the Employment Rights Act 2025 in a private equity context" on 7 October at 11am.
Register here >

Statement of right to join a trade union delayed until December 2026/January 2027

The government has published a statement in response to its consultation on the new right under the ERA requiring employers to provide a statement to workers of their right to join a trade union. It has now confirmed that this duty "is intended to come into force between December 2026 and January 2027". 

Standard wording to be provided in regulations 

The announcement states that to ensure the duty is implemented effectively and proportionately, the government will provide, as part of its regulations, a standardised statement for employers to issue and "which employers may not amend except to add specific workplace information". The statement will include a brief explanation of union functions, a list of and information on recognised trade unions and/or statutory access agreements (where applicable) and a summary of statutory rights. 

Provision for delivery to new joiners and existing workers with annual reminders

The statement will need to be delivered directly to new workers at the same time as the written statement of employment particulars. 

For existing workers, the statement may be delivered through either direct methods, or indirect methods (in which case it must remain reasonably accessible to the worker). Where employers choose to deliver statements to their existing workers directly, they must do so annually by 5 April. Where the employer uses indirect methods to deliver the statement, the employer will have to ensure that the statement remains continuously and reasonably available to the worker. The employer must issue an annual reminder that the statement is available and where to find it. 

Where any changes are needed to the statement, such as a change to the identity of unions which are recognised, the statement will need to be reissued within one month of the change.

Government publishes responses to two more consultations on ERA reforms 

Government response to Make Work Pay consultation on bereavement leave

The government has published its response to the Make Work Pay consultation on leave for bereavement including pregnancy loss looking at the detail of the new statutory day one right provided for in the ERA. The new right is set to come into force in April 2027.

After consultation, key elements of the entitlement are set to include the following:

• Leave will be available to employees who experience all types of pregnancy loss before 24 weeks (including terminations and IVF embryo transfer loss). Entitlement extends to the person who experienced the pregnancy loss, the other biological parent, partners and intended parents in a surrogacy arrangement.

• In respect of bereavement leave, this will be available to a wider range of relationships including employees who experience a bereavement of their spouse, partner (cohabiting and non-cohabiting), parents, adult children, siblings (biological, adopted, step and half), and equivalent parental relationships for those raised in kinship arrangements or by foster carers. 

• Employees can take up to two weeks of leave, based on their average working pattern. 

• Leave can be taken within 56 weeks of the bereavement and can be taken in discontinuous single days. The leave period starts from the date of death or pregnancy loss or the date of knowledge.

• Notice can be given as soon as reasonably practicable, the same day if taken with the first eight weeks of bereavement, and one week's notice thereafter. Any form of notice is acceptable.

• There are no evidence requirements and the leave is unpaid.

The detail of these rights will be set out in regulations. 

What should employers do now?

The government has confirmed that it will now proceed to implement secondary legislation, with the new right coming into force in April 2027.

Guidance will be published to assist employers in implementing the new rights and supporting their staff, alongside a wider evaluation on how best to support bereaved people in the workplace to encourage better outcomes for everyone, not just those who fall within the statutory entitlement.  

Currently, only employees who lose a child have a statutory entitlement to time off from work for bereavement. However, while there are other statutory rights which may enable an employee to take leave in certain circumstances, for example sick leave and dependants leave, there is no current statutory right to time off specifically for bereavement or to grieve. Most employers act flexibly and sensitively to requests for time off from employees experiencing bereavement, for example through compassionate or special leave schemes. However, in the consultation response the government recognises that employer responses can vary considerably, and not all bereaved employees are given this support. 

The lack of evidential requirements does mean that employers will need to build a culture of trust rather than verification. Managers will need to exercise judgement and compassion without the reassurance of documentary proof, while remaining alert to the sensitivities involved, especially where a pregnancy loss occurring before 24 weeks may not yet be known to colleagues. 

Government response to Make Work Pay consultation on improving access to flexible working

The government has published its response to the Make Work Pay consultation on improving access to flexible working, confirming that both a new statutory process before rejecting a flexible working request and the introduction of a statutory requirement of reasonableness when rejecting a request, will be implemented via regulations. These changes are intended to take effect in autumn 2027. Acas will separately consult on a draft update to its Code of Practice on flexible working requests, which will take effect alongside the legislative changes.

New statutory process

The government's response confirms that the existing duty to deal with a request in a reasonable manner will require an employer to hold a meeting with an employee before rejecting a statutory flexible working request. The stated objective of the meeting will be for the employer to consider the feasibility of the requested arrangement and address challenges where possible, and if the requested arrangement is not feasible, explore any suitable alternative arrangements. The meeting must be conducted by the employer with a view to reaching an agreement with the employee. 

Fair and reasonable notice of the meeting

The meeting must take place within the existing two-month statutory decision period. Employers must give the employee fair and reasonable notice of the meeting, with further guidance on this expected ahead of implementation. Employees must be informed of the purpose of the meeting in advance.

The government has taken the view that introducing a statutory right to be accompanied at the meeting, including by a trade union representative, would create unnecessary formalisation of what should be a conversation between an employee and their line manager. Non-statutory guidance will continue to encourage employers to allow a companion, and where an employer recognises a trade union, employees should be allowed to be accompanied by a union representative if they wish. This also remains recommended good practice under the Acas Code of Practice.

Attendance by the decision-maker is not mandatory 

The government had initially proposed requiring the person with the authority to make a decision on the request to attend the meeting. After consultation, the government will not make this a legislative requirement, following concerns that in larger organisations the decision may rest with a senior leader or HR director and may involve multiple staff. 

The employer must clearly communicate any challenges it identifies with the original request, explaining why the request is considered infeasible or unreasonable by reference to the relevant statutory business reason(s), and must consider with the employee whether those challenges can be overcome (for example, whether a different start date would address a business objection, or whether a trial period would help clarify the impact of a new arrangement).

If the original request cannot be accommodated, the employer and employee must consider whether feasible alternative arrangements exist. There will however be no formal statutory requirement for trial periods. Employers can already trial arrangements, set review periods, or agree a defined timeframe under the existing framework. The government considers that discussing trial or temporary arrangements during the meeting is constructive, but this will not become a formal legislative requirement; instead, guidance will be developed to raise awareness of these options and which reflects existing practice among many employers.

As with the original request, any proposed alternative may only be rejected where a relevant statutory business reason applies.

Written communication

Employers must provide written notification of the outcome of the meeting (a summary of conclusions or next steps agreed, or confirmation that an arrangement has been agreed) and separately the outcome of the request (the final decision: approved, rejected, or an alternative arrangement formally agreed). Where an arrangement is agreed at the meeting, a single communication can satisfy both requirements. 

Reasonable adjustments treated separately

The original consultation proposal had suggested requiring the decision-maker to ask employees in the meeting whether they wished their request to be considered as a reasonable adjustment under the Equality Act 2010. The government has decided not to carry this requirement into the final process, concerned that employees may not know whether their request should properly be treated as a reasonable adjustment, and that raising the question in the meeting risked conflating two distinct legal regimes and leading employers to apply the wrong framework.

The right to request flexible working and the duty to make reasonable adjustments remain legally separate, and the government will instead develop guidance to help employers and employees understand when each regime applies.

No statutory right of appeal

Some consultation responses called for a statutory right to appeal a flexible working decision. The government has taken the view that the new consultation meeting already provides materially greater transparency and dialogue than exists today, and that a mandatory appeal stage risks over-formalising what is intended to be a collaborative process. 

Employers may still choose to offer an appeal route, which remains recommended good practice under the Acas Code of Practice. Where no appeal route exists, employees who consider their request was not handled reasonably retain the option of raising a grievance, seeking advice, or bringing a tribunal claim.

What should employers do now?

The government intends both the secondary legislation setting out the new consultation process and the commencement of the Employment Rights Act 2025 reasonableness test to take effect in autumn 2027. 

Acas will publish a draft updated Code of Practice on requests for flexible working for public consultation, which will take effect at the same time as the legislative changes and will set out new statutory guidance for both employers and employees. Separately, Acas will also publish detailed guidance on the reasonableness test later this year, giving employers an opportunity to prepare for that element of the reforms. 

The government has also indicated it will consider what further information and guidance is needed to support implementation.

In the meantime employers should:

• Review and update flexible working policies to build in a structured consultation meeting before any rejection of a request, including clear steps for identifying challenges, exploring alternatives, and documenting the outcome.
• Ensure line managers have sufficient authority, or a clear escalation route to someone who does, to meaningfully explore alternatives during the meeting, where a decision-maker does not attend in person.
• Train managers on the new procedural requirements and ensure that they are able to distinguish flexible working requests from potential reasonable adjustments under the Equality Act 2010, as well as identifying any wider discrimination risks.
• Monitor the Acas consultation on its draft updated Code of Practice, and other government guidance.

Although autumn 2027 feels distant, the direction of travel is now clear: the government has confirmed it will proceed with both the new consultation-meeting process and the reasonableness test. For large employers, the practical shift will be towards ensuring that they can demonstrate a genuine two-way conversation, with any challenges identified and alternatives properly explored and that the meeting is not simply a box-ticking exercise. This will be important if a decision later falls under tribunal scrutiny.

The government is clear in its response that the reforms do not prevent an employer from ultimately rejecting a request where it is reasonable to do so and no agreement can be reached. The purpose of the meeting is to explore whether a mutually acceptable outcome can be achieved, whether that is agreeing the request as made, agreeing a modified arrangement, agreeing to trial an arrangement, or agreeing an alternative form of flexible working.

The decision to keep reasonable adjustments and flexible working as legally distinct regimes, rather than blending the two questions within the meeting, means managers still need to be trained to spot when a request might really be a reasonable-adjustment issue in disguise, along with wider discrimination risks. 

With the notice period for the meeting deliberately left undefined, employers should now start to look at their existing processes, assess what changes are required and test them in the run up to the new rights coming into force.

EAT decision provides guidance on AI-generated submissions

The Employment Appeal Tribunal has made a number of observations about the use of AI by litigants (including those without representation), in a recent ruling.

The Employment Tribunal had struck out the appellant’s claims, finding that his conduct of the proceedings, including over 145 LinkedIn posts about his claims, continued publicising of disclosed litigation documents despite a solicitor’s warning to stop, and approaches to the individual respondents’ colleagues to secure evidence, had been “scandalous, unreasonable or vexatious” and had created “a culture of fear and intimidation” such that no sanction short of strike-out would suffice.

On appeal, the appellant, acting as a litigant in person, filed a 300-page, 132,000-word skeleton argument created using ChatGPT for the preliminary hearing. This did not comply with the EAT’s Practice Direction and, in the EAT’s words, “served to obscure rather than to illuminate”. At the hearing, the appellant and his Employment Law Appeal Advice Scheme (ELAAS) representative pursued only one ground of appeal, expressly abandoning a second ground. The EAT allowed the single ground to proceed to a full hearing; it dismissed the appellant’s later attempt to bring back in the second ground. 

At the hearing, the EAT made helpful observations on the appellant's use of AI. 

AI use is not prohibited, but personal responsibility is non-negotiable

The EAT held that all litigants, represented or not, must take personal responsibility to ensure, at a minimum, that documents comply with applicable procedural rules, have been checked as thoroughly as reasonably possible for accuracy, and contain only relevant points, focused on the central or best arguments and are presented in an easily comprehensible manner avoiding undue repetition.

The burden of checking a document cannot be shifted to the other side

The EAT criticised the appellant’s covering email, which invited the respondents to identify inaccuracies in his 300-page skeleton by the following afternoon. It held that it was for the appellant to take responsibility for his own written argument, and found the skeleton “entirely unacceptable” for breaching the Practice Direction’s length limits (5-15 pages, 20-page maximum) and formatting rules.

Lack of representation does not lower the bar for procedural compliance

The EAT confirmed that in line with previous authorities, a litigant’s lack of representation will not usually justify a lower standard of compliance, since any indulgence disadvantages the other side. 

Drawing on a previous EAT decision in Ayinde, which also looked at the use of AI in the course of proceedings, the EAT held the same underlying principles apply to litigants in person, with an equal, arguably more exacting, standard for professionally represented parties.

Excessive correspondence has consequences

The EAT noted the appellant’s excessive, often non-compliant correspondence had required a disproportionate share of its resources, warning that continued excessive correspondence could lead to an order limiting his ability to email the EAT.

What does this mean for employers?

This decision will be welcomed by employers dealing with litigants in person, as it confirms that a lack of representation does not lower the bar for procedural compliance. 

Where an opposing litigant files a document that does not comply with the tribunal’s rules, whether AI-generated or not, the appropriate course is to raise the issue with the tribunal, not to take on responsibility for checking or correcting it. Doing so risks rewarding exactly the conduct the procedural rules are designed to discourage.

The case also illustrates the value of restraint. It would have been easy for the respondents to respond in kind to the volume of the appellant’s correspondence and applications, but the EAT’s approach reinforces that calm, proportionate engagement is the more effective course, both in managing the tribunal’s perception of the parties and in protecting the employer’s own position.

Perhaps the most practically significant aspect of this case for HR is the reminder of how litigation conducted, in part, on social media can escalate. Once proceedings are under way, some claimants use social media as a means of pursuing their grievance publicly, and this case shows how seriously tribunals can treat that conduct: over 145 posts made despite a direct warning from the respondents’ solicitors, together with the sharing of disclosed litigation documents, ultimately contributed to a strike-out. Employers should take this as an opportunity to review their social media and confidentiality policies, and to consider whether the disclosure and confidentiality undertakings used in tribunal proceedings adequately address the risk of disclosed material being shared online.

Where an employee’s conduct genuinely threatens the fairness of a hearing, whether through contact with witnesses, misuse of disclosed material or otherwise, it is important to keep a contemporaneous record as matters unfold. This record will be significant both in supporting any application to strike out the claim and in ensuring that appropriate support is available to those affected. 

The tribunal in this case drew on previous EAT guidance, which remains a useful three-stage framework for assessing such conduct: whether it relates to the manner in which the proceedings are being conducted; whether it made a fair trial impossible; and, if so, whether any response short of strike-out would be proportionate.

The appellant here had also argued that his ill-health had caused him to confine his appeal to one ground. The EAT found no evidence he lacked capacity to make that decision at the hearing. Where assertions related to health are raised, employers should be prepared to request specific, contemporaneous medical evidence addressing fitness to participate, rather than relying on general assertions. This should sit alongside a continued willingness to make genuine, evidenced adjustments where the medical position supports them.

This decision sits within a fast-growing and consistent line of authority, including the Presidential Guidance on applications for interim relief, confirming that courts and tribunals expect AI to be used responsibly, with full personal accountability for what is ultimately filed, regardless of who, or what, drafted it.

HR pensions spotlight for September: Have your say on the future of automatic enrolment

On 16 September 2026, the Work and Pensions Committee opened an inquiry into pensions adequacy, focusing on automatic enrolment contributions for low earners and their employers. The inquiry is seeking views on a number of questions. 

These include the extent to which automatic enrolment contributions need to increase to ensure workers have sufficient retirement income, how any contribution increase should be shared between employers and workers, the appropriate timetable for any increases, and whether the number of people eligible for automatic enrolment should be increased by reducing or removing the lower earnings limit and/or the earnings trigger so that pensions contributions are calculated from the first pound earned and/or people earning less than £10,000 become eligible.

These questions build on debate that has been ongoing since the government's 2017 Automatic Enrolment Review. The issue is now firmly back in the spotlight as the second Pensions Commission approaches the final stage of its work on the long-term future of the pensions system and pensions adequacy. The Pensions Commission published an interim report in May 2026 and is expected to deliver its final recommendations to the government in 2027.

The inquiry will close at 4pm on 26 October 2026. Employers who would like to submit a response should note this deadline.